ILNews

Court: federal suit should have been dismissed

Michael W. Hoskins
January 1, 2007
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The federal District Court in Indianapolis should have dismissed a suit challenging Indiana's prerecorded telephone messages statute because a state court was already considering the issue and could have provided an adequate legal remedy, the 7th Circuit Court of Appeals ruled today.

The three-judge appellate panel also chastised U.S. District Judge Larry McKinney for concluding last October that the then-approaching 2006 congressional election was a reason for urgent attention on this issue.

The 7th Circuit decision came in FreeEats.com, Inc. v. State of Indiana and Steve Carter, Attorney General, No. 06-3900. The issue stems from near-simultaneous disputes in both state and federal courts last year involving Indiana Code 24-5-14-5, the Automated Dialing Machine Statute.

Virginia-based company FreeEats.com sought to halt the attorney general's enforcement of the little-used statute adopted in 1988 and stating: "A caller may not use or connect to a telephone line in an automatic dialing-announcing device unless the subscriber has knowingly or voluntarily requested, consented to, permitted, or authorized receipt of the message; and that the message was immediately preceded by a live operator who obtained the person's consent before the message began."

Carter's office had filed a state claim in Brown Circuit Court in early September 2006 against another company that had hired FreeEats.com to make the pre-recorded calls to Indiana residents from Virginia. Three days after that state court action, FreeEats.com filed this federal action seeking an injunction to stop enforcement.

Judge McKinney ruled Oct. 24, 2006, that Indiana's statute on automated phone calls does not restrict interstate commerce and is not pre-empted by federal law, but he also denied Carter's motion to stay and dismiss the case pursuant to the abstention doctrine spelled out in Younger v. Harris, 401 U.S. 37 (1971). That ruling required federal courts to abstain from enjoining most ongoing state proceedings unless there are certain extraordinary circumstances.

While the state had argued that the federal court could abstain while similar issues were resolved in pending state court litigation, Judge McKinney decided to forward those issues on because of the federal issues involved - specifically the Nov. 7 general election.

But Circuit Judge Daniel Manion and his appellate colleagues disagreed in an 18-page opinion and remanded the case for dismissal.

"Whether a fast-approaching election justifies refusing to abstain under the principles of Younger is an issue of first impression in this circuit," he wrote.

"We further note that elections, be they municipal, state, or federal, take place on a very regular basis," Judge Manion wrote. "If we were to conclude that waiting until weeks before an election to file a suit seeking injunctive and declaratory relief from a state statute that was enacted eighteen years earlier gives rise to 'extraordinary circumstances,' then it would give license to the federal courts to run roughshed over the state courts' rights to adjudicate properly filed actions involving constitutional challenges that relate in some way to that election. That result would not respect comity, and this it would violate the core principles of Younger."

Aside from the election issue, the 7th Circuit also noted that the Indiana state court clearly has the power to grant a preliminary injunction to FreeEats.com to prevent the state from enforcing the statute, as well as issuing decisions on other federal law preemption and constitutionality claims.
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  1. Should be beat this rap, I would not recommend lion hunting in Zimbabwe to celebrate.

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  4. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

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